FMLA taking its toll on oc-med’ nurses
As if dealing with an unprecedented nursing shortage weren’t enough, occupational health nurses have an additional — and no less heavy — burden to bear: the Family Medical Leave Act (FMLA). (For more on the nursing shortage, see "Nursing shortage: It’s likely to get worse before it gets better," in this issue.)
According to executives at CORE Inc., an Irvine, CA-based national provider of employee absence management services, the considerable administrative responsibility FMLA calls for has fallen to occupational medicine nurses by default. "The FMLA doesn’t have its own specific in-house structure within the hospital, like you do with risk management," explains Becky Auerbach, CORE’s vice president of research.
"The responsibility often falls on the shoulders of oc-med nurses, who do not necessarily have the requisite expertise," she says. "The FMLA needs a full-blown department, but no one has been able to demonstrate its impact on the organization, which would raise it to the level of human resources or risk management."
It’s not that industry organizations haven’t taken notice. Auerbach has attended the last two conferences of the American Association of Occupational Health Nurses, which included sessions on the FMLA. "The first year [the organization] held a half-day session, and this year it was a full day," she notes. "The focus was on productivity; people seem to be at their wits’ end."
They have good reason for concern, based on CORE’s most recent survey of 400,000 FMLA absence records collected since CORE launched its own FMLA product in 1995. Here are some of the key findings:
• Employers can expect to add the equivalent of one full-time employee to administer FMLA absences for every 3,500 to 5,000 employees.
• 30% of the intermittent FMLA leaves studied were for absences of less than eight hours, adding to the administrative burden on employers, and those administering the program.
• FMLA utilization ranges from 30 to 40 workdays per year for every 100 active employees.
• Employers can expect to spend $50 to $170 per employee per year due to the FMLA.
• Employers who do not track FMLA absences correctly with paid disability leave (which counts against FMLA days) may experience 50% more FMLA days.
These administrative burdens can truly be onerous, says Auerbach. "Let’s say an employee is out with migraine headaches, and she is absent six times a month, for three hours each day," she posits. "The employer — read: occupational health nurse — has to do the paperwork that many times; that’s six hits of administration. Also, you have to figure out how to cover three hours of somebody’s time.
Buried under the paperwork
"Occupational medicine nurses are handing out the paperwork; they are responsible for file drawers of all the various pieces of administration, filing, certification, and so on," she adds.
What’s worse, failure to administer the program properly can leave the company open to an employee lawsuit, or to an audit and fines by the Department of Labor. "The scary part is it’s not being done consistently, but because it’s a federal law, it should be," says Auerbach. "The nurses are just trying their best to keep their heads above water."
Then there’s another twist: Although there is a federal FMLA, approximately 20 states have their own family leave laws, which in some cases are more generous — and thus supercede — the federal law. "In California, for example, on top of the 12 weeks the federal FMLA gives you for pregnancy, you have 12 additional weeks for bonding time," she explains. "Employees are beginning to figure out how to maximize their time off using both laws."
What’s worse, employees also can take off more time than they’re entitled to, if the individual administrating the program has not read the fine print. "Time off from work for workers’ comp or short-term disability count against FMLA time, explains Jim Franklin, CORE’s vice president of strategic partnerships. "So, if you have 12 weeks of FMLA time and you are out for nine weeks for workers’ comp, you only have three weeks left. However, if the employer does not calculate this correctly, the employee can literally take another 12 weeks."
In short, many employees may understand the loopholes of the FMLA better than their employers. That is certainly true of some unions, notes Auerbach. "FMLA leave is protected leave; it was not intended to cover casual absence, just serious illness," she notes. "But the definition of serious medical condition’ can be interpreted very loosely, and unionized populations have figured out how to characterize it to their benefit."
Productivity costs are great
In addition to the considerable administrative challenges, the FMLA has taken a toll in productivity as well. "We can demonstrate significant productivity loss due to FML absences," says Auerbach. "Even though it’s unpaid leave, you have the ramifications of people not being at work; a lost day is a lost day. You pay indirectly for their overhead, their benefits, and for someone to replace them — often at a higher rate of pay, either through a temp or overtime."
This, in turn, puts more stress on employees, which can heighten the risk of physical or emotional health problems. "You’ve got more stress, certainly from the perspective of more overtime — sometimes whether the employee likes it or not, like having to work extra workdays or weekends," notes Franklin.
"Also, you have more stress on management. This message came out loud and clear on Capitol Hill [where CORE recently hosted a visit by staff from the Committee on Education and Workforce of the U.S. House of Representatives and the national FMLA Technical Corrections Coalition, to discuss the impact of FMLA on employers]. Basically, you have eliminated the employer’s ability to incentivize employees’ coming to work through an attendance program," he says.
You can’t count FML time as time off, Franklin explains. "If you give an attendance award, the winners could be people with perfect attendance records, or they would be workers who had actually been out of work for 12 weeks."
For those occupational health professionals overwhelmed by the ins and outs of the FMLA, there are resources available, and more on the way. "We currently do FML administration for six companies, which represents about 150,000 covered lives," says Franklin. "Later this year we will introduce a web-enabled FML administration product that will help employers and employees initiate the absence and get their certification correctly administered."
At present, Franklin notes, a large number of employers don’t even know about the FMLA. "When they don’t, it’s incumbent on them to do something about it — or they’ll be at much higher liability," he warns. "They need to understand that the FMLA is here, and that it’s not a benefit; it’s a law. If you are audited by the [Department of Labor], you have to show you have a plan in place to administer that law, or you will be subject to fines or grievance awards to employees," Franklin adds.
[For more information, contact: CORE Inc., 18881 Von Karman Ave., Suite 1750, Irvine, CA 92612. Telephone: (800) 258-CORE. World Wide Web: www.coreinc.com.]
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